In the case of the manufacturer of the goods, described as receiving an order and executing it, and shipping the goods on board a vessel for the Gallinas, it would be strong to infer that he had any thing to do with the slave trade. Why so, but because every one of these acts is compatible with ignorance of the objects that are or may be intended? Now, the learned Judge had previously established that the acts of buying and shipping, chartering, and dispatching, are not necessarily in themselves conclusive of guilt, which of course they are not; how, then, is the inapplicability of the comparison put by the counsel for the defence to be maintained, but by laying down the principle, that for the purpose of a defence under this charge, the commission-agent must, at all events, be required to be possessed of, and therefore to be able to give, a plain and simple account of what the merchant abroad intended; and this once laid down, nothing that comes short of it must be suffered to tell in his favour.
The preceding remarks are scattered over the whole of the summing up, and accompany a recapitulation of the particulars of the case. They are here brought together in succession, for the purpose of showing the manner in which the circumstances of the case, in a proceeding of this kind, are treated. It is very true that an introductory remark precedes, laying down “that it is necessary undoubtedly, on the part of the prosecution, that there should be a case made of knowledge, on the part of the prisoner, of the purpose for which this adventure was meant.” The whole process which follows is of a nature which would appear contrary to this principle, unless with the qualification that the proof is to consist in the prisoner not giving himself a plain and simple account of something innocent meant by the foreign merchant residing abroad; and as if the law left no alternative to the shipping-agent, who buys and ships the goods in England by his order, but to do this; or, ipso facto, by not doing so, to stand self-convicted of the guilty knowledge.
Under this view of the requirement of the law, which I have now followed throughout this charge, the concluding remarks of the Judge seem to be dictated. “Now, inasmuch as there are two other partners, and it is probable there might be some other persons in the concern, there arises this consideration. It is true, supposing that there were a case made, but that the prisoner was innocent of it, that he could not call Martinez & Co. on that supposition, as he might on the supposition of there being no slave trading; for Martinez & Co. would not be innocent persons, and they would not be willing to come into this country and say, ‘We carried on the slave trading, but it was disguised from our correspondent, Zulueta & Co.’ If you think there is a case requiring an answer, the question then is, would there have been any difficulty in the prisoner calling his two partners, and others conversant with the business of the firm, and proving that Zulueta & Co. knew nothing at all about this, that they had not the least suspicion, that Martinez & Co. never communicated the fact to them, and that the illegal purpose was utterly unknown to them, for some reasons which the prisoner cannot give, but which his partners could? It would be extremely desirable they should do it, if the defence existed in point of fact.” And lastly, the learned Judge concludes his address to the Jury, by directing their attention to the evidence of the character of the prisoner, remarking, that it is “a character I should say very strong indeed, and almost conclusive, supposing the case were one that did not admit of an answer in point of fact.”
Here the same principle of demanding a justification of innocence is carried out, which pervades the whole of the summing up, and of every part of the management of the case by the Court. It is not said, in any one part of the charge, that the prosecution have made out either a case of slave dealing, or any knowledge of such a thing being intended, or known to be intended by the prisoner, against which a contrary case should be opened and proved; but only that evidence which the prisoner should give of innocence is pointed out; and, what is most remarkable, the following circumstance was not thought worthy of notice.
Mr. Fitz-Roy Kelly (the counsel for the defence) had in the outset, when Mr. Serjeant Bompas was opening the evidence for the prosecution, brought into Court every book, letter, and paper of the firm of Zulueta & Co., with the clerks in whose keeping these documents constantly are: they consisted of the journals, ledgers, letters, bill-books, memorandum-books, original letters of the house of Martinez & Co., of the Havannah, and Martinez of Cadiz, since 1839, one year before these transactions originated, up to 1841, one year after their termination; and, as will be found in [page 303], Mr. Kelly made the following tender:—“I ought to add, as the notice to produce has been referred to, and is now upon the table, that the notice calls upon the prisoner, Mr. Zulueta, to produce all the books, documents, and accounts of his house, between certain dates, at all relating to the transaction in question; and all letters written, and copies of letters written by this house, or any body for them in relation to this matter. My Lord, every document there mentioned is here in Court, and in two minutes ready to be put upon the table.... The greater part are in Spanish, and the prisoner at the bar can distinguish them; but the clerks who kept these books, the corresponding clerk, and the clerk in whose handwriting they are, are ready to speak to any thing my learned friend may call for from the beginning to the end.” This is not taken any notice of by the learned Judge, when pointing out that the prisoner should have called his own father and his own brother, the only partners in the house, to prove that Zulueta & Co. had no knowledge of any slave trading being intended, although the prisoner himself had so stated the fact to be before the Committee of the House of Commons, in the evidence which had been read in Court; and if the statement was objectionable, as being from the party now deeply interested himself, when in a very different situation, it is not perceived how that objection would not have held with tenfold strength at that moment against their evidence. Thus it remains on record, that nothing short of a plain and simple account of what the merchant abroad intends, made out by the defendant, will answer any purpose of the slightest advantage to himself. It is enough in the case of a vessel employed by an agent in England to carry goods, bought and shipped by himself, by order and for account of a foreign merchant residing abroad, if the prosecutor show a general slaving at the port of destination.
And thus have I disposed of the last point which I proposed to illustrate out of the summing up of Justice Maule, in order to show the position of merchants who have intercourse of business with countries wherein slavery, and the slave trade, is still permitted to exist.
I began by showing the facility afforded by the law to any individual whomsoever, who may choose to undertake a prosecution, not only without the consent, but against the recorded judgment of the Legislature, and the known opinion of those officers of the Crown who are especially charged with the prosecution of public offenders. I have shown, that this may be done by any man—whether from motives of private resentment, or of private interest, or of wanton malice—whether under a fanatical hallucination, or from a desire of vain-glory, or from a combination of all or of some of the very worst passions of the heart with the less inexcusable errors of the head, it matters not: the search for the particular motive operating in any one given instance is indeed unprofitable, and whilst it cannot do much towards reclaiming the perpetrator of the mischief, would but little improve the moral tone of mind of his victim, yet the fact itself remains unaltered, viz. that a prosecution of this kind, in the name of the Queen, which the forms of justice require to be used, and on the plea of a public spirit, may be taken up by any man in defiance of a recommendation to the contrary by the House of Commons, upon a case canvassed and decided upon by a Committee of that House, and against the opinion of the law officers of the Crown. It has also appeared, that to the general and very powerful objections which are suggested by the common sense and reason of mankind against this practical reversion to the state of savage life in which a man can take such means of attack upon his fellow-man as he thinks will effect his purpose best, with this sole difference, that the self-appointed public prosecutor may inflict even greater mischief with the weapon of the law than the savage with the knife, and more securely, this evil is added, viz. that this private avenger of public wrongs may adopt the form of a secret information before a Grand Jury, thus avoiding the necessity of appearing as the accuser, unless he chooses so to do, at his own most convenient time, and always preserving the secrets of his own statements, by means of which the first blow at all events will have been successfully, irremediably, and fatally inflicted, and thus placing himself above any responsibility on that account. Then it has been seen, that at this stage of the proceedings, and under all the ignorance as to the prosecutor and as to the depositions upon which he is charged, inseparable from the nature of the proceedings, a man, reputed honourable, as unsuspecting himself as unsuspected by his fellow-citizens, may be dragged from his office and from the bosom of his family, with imminent risk to his business, and with still more fearful effect upon his dearest connexions; and under the shock of his own feelings, which so awful a situation must naturally produce, is conducted as a common felon under charge of the police to the station-house, and thence to the Old Bailey, whence he can only be suffered to depart (of course in exactly the same state of ignorance under which he entered the Court), when the person who arrested him shall have consented, and on such terms as he shall consent to; and then only will he be allowed to return to his distracted family and prepare his defence—against what? against a technical definition of some facts in which he has played some part, but which being so defined as to square with the application which may be meant to be made of a certain Act of Parliament, is sure to bear no kind of resemblance to the real manner in which the said facts occurred, and of course none at all to the impression which they left on the mind of the accused, or to the form in which alone they can present themselves to his mind; and, therefore, such a definition can convey no information of the nature of the depositions secretly made against him, and cannot consequently assist him in preparing evidence against them. He must launch into the regions of imagination for every possible construction which may be given by any man to those facts which have been really done by him, and prepare evidence upon every one of such possible constructions, at an expense and amidst perplexity which may be supposed, and after all most likely to no purpose, for probably the construction to which the proof will be directed by the prosecution may be one against which no counterproof has been prepared; and indeed it will be so, for with this very object the proof will be directed to the construction least likely to occur to the accused, and that upon which a counterproof will be most difficult—for all which the nature of the Act of Parliament has been seen to afford peculiar advantages.
In this state of things the trial comes on. The facilities thus far given to an unknown accuser have been seen, and to so frightful an extent, that even if the trial proceeds no further, an amount of incalculable and irreparable evil and misery may have been perpetrated. These facilities, it has been further seen, are not at all balanced by the strictness of the requirements of the law from the prosecution, they are all applied against the accused. The definition of the crime by the Act of Parliament is itself loose and capable of an unlimited application, and it is understood and laid down in the very largest, thereby including acts which are notoriously and expressly admitted to be in themselves perfectly innocent: the only qualification is the knowledge. This is brought to a lower point in the scale, viz. suspicion. With a show of ingenuousness, as if to put down a quibble, which in Court sounds like a zeal for the truth, the question is made to be, not whether you knew, but whether you suspected; and next, whether you had reason to suspect; the tendency really being towards the real point, to which you are only being gently let down, viz. whether witnesses can be found who will say that they themselves knew very well a great many things, which ought therefore to have been known by yourself, and that therefore you must at least have suspected.
Then the prosecution is not limited to the proof of one particular charge: here it is suffered to remain quite at large—they need not define the act they mean to charge, whether it is this, or that, or any thing else, upon the accused. The knowledge of the intent, in which every lawyer in the land whom you may consult previous to entering into any operation, will tell you, before you are indicted, that the guilt consists, after being brought down to a lower point, as observed before, is made out to be, 1st, any knowledge, not the knowledge in the particular case; 2nd, the knowledge of others, not your knowledge; and the proof of it is no further put upon the prosecution than so far as to make out a case of probable knowledge, founded upon evidence of some general acts done by certain persons on other occasions, not the one in question, in distant countries—acts to which you are not shown to have been a party, or even probably acquainted with—persons in respect of whom all your proceedings in England are admitted to be in themselves, and as done towards them, perfectly innocent; such acts being done upon such other occasions by such persons in countries far away, little known, with which no regular means of communication exist—countries almost unknown to every one in England, and not at all proved to be known to yourself: and all this evidence given by individuals not in circumstances analogous to those in which the accused stands, but by individuals, and by no others, who in the exercise of a peculiar duty have sometimes visited the countries in question; and therefore leaving the whole of the case open to this remark, that whilst it is not at all shown, either from your own acts, or from the facts themselves, that you in England must necessarily have known, there is an evident impropriety in pushing the witnesses to the extent of proving, that nothing but what they said to have happened on other occasions in other places, could have been the ultimate issue of an unaccomplished speculation, intercepted by one of the witnesses, to his evident advantage.
It has lately been shown that such a case of probable knowledge, so made out, and so substantiated, will go to the Jury; and in going to the Jury nothing will avail you, as far as the law goes, but your being able to give “a plain and simple account of what was intended by a foreign merchant residing abroad,” whom you must even bring over to give evidence of what he intended to do with goods shipped by yourself in England, in consequence of a simple order as a mere commission-agent, or to show an impossibility of your being aware of that intent whatever it may be. Without complying with one or other of these two requirements, your case shall go to the Jury, accompanied by every unfavourable inference; and what should have been for your advantage is turned against you. The readiness and openness of the party accused in giving every explanation upon the very first intimation of a suspicion existing on the subject—the credit attached by every one capable of correctly estimating those explanations, whatever circumstances of a favourable nature may lie on the very surface of the case itself—the respectability of the accused, his rank in society, and high character, as vouched by men of the first standing, and who have every opportunity of knowing him and his acts—his wealth, his education, his knowledge—qualities peculiarly adapted to this kind of felony, which is intimated to be the felony of the honest, the wealthy, the educated, the well-informed—all these things seem in the exposition of the law to be literally against him. Nevertheless, these circumstances, combined with the impression produced by the inquisitorial nature of the original proceedings, together with the irresistible force of that axiom, that “a man must be proved to be guilty, and not called upon to prove himself innocent,” may—and thanks be to God, did, in the instance before us—blunt the edge of the murderous weapon brandished over the head of the accused.